Last Updated August 10, 2023
What is a Separation Agreement?
A Separation Agreement lists a married couple's choices when preparing to separate. It can document temporary (trial) or permanent separations. It is also known as a marital separation agreement.
Generally, a Separation Agreement covers:
What’s the difference between a trial separation and a permanent separation?
A couple may use a trial separation as a way to evaluate their marriage and to work on themselves as well as their relationship. In a trial separation, the couple may still get back together.
However, a trial separation becomes permanent if the couple chooses to stay separated but remain married. This happens when they decide they cannot reconcile problems in their relationship, but a divorce is not the final outcome they want to pursue.
Do the terms change when a trial separation becomes permanent in a Separation Agreement?
The terms of the Separation Agreement do not change when a couple turns their trial separation into a permanent one. The terms will only change if the agreement uses time-specific language. The courts still see the couple as legally married until divorced, and the Separation Agreement remains valid.
How do Separation Agreements affect divorce proceedings?
Our Separation Agreement template helps you create a document when you and your spouse are ready to separate. It guides you step-by-step through each section. You can then submit the agreement during divorce proceedings.
Having a Separation Agreement makes the legal process easier by helping the judge understand the details of your separation.
The courts craft a divorce certificate or decree if the couple proceeds with the divorce paperwork. If the couple still agrees to the Separation Agreement’s terms, they could become the official terms listed in the divorce decree. The Separation Agreement itself is no longer used when the divorce becomes official.
How long must a couple be separated before they can divorce?
You and your spouse must live apart for at least a year before you can divorce. This rule does not apply if you file for divorce due to adultery or abuse.
What does “living separately and apart” mean?
Generally, living apart means you and your spouse no longer act as if you are married. It doesn't necessarily mean you live at separate addresses. Evidence of living separately and apart can include:
- Not participating in the same activities
- Dividing household responsibilities
- Segregating assets and finances
- Refraining from sexual relations
- Communicating less often
- Eating meals separately
After separating, you might still live in the same home as your spouse for several reasons, like:
- Creating a smooth transition process for other family members
- Focusing on co-parenting and child support duties
- Overcoming financial challenges
When should I use a Separation Agreement?
You should consider creating a Separation Agreement if you’re:
- Getting divorced
- Entering a trial separation with your spouse (i.e., you remain married but live apart)
- Permanently separating from your spouse but want to stay legally married
The ideal time to use a Separation Agreement is when you and your spouse can easily agree on the terms you want to include. If you and your spouse agree to fair contract terms, the judge will likely enforce them.
Who is considered a spouse in this agreement?
Spouses are people who are legally married.
Can I use this agreement if my partner and I are common-law?
No, you have to be legally married to use a Separation Agreement. Although common-law partnerships have no formal separation process, you can complete a Cohabitation Agreement to avoid potential conflict. This is especially beneficial if you share property.
When done correctly, a Cohabitation Agreement is a legally enforceable document.
What should I include in the Separation Agreement?
Our questionnaire helps you to organize the following information in your marital Separation Agreement:
- General information
- If you want the Separation Agreement to be valid after the divorce
- The province where you and your spouse live
- Marriage details
- Location where you were married
- Your marriage date
- Party details
- Your name and address
- Your spouse's name
- If you and your spouse live at the same address
- Your child or children's address
- Their name and date of birth
- Custody information, living arrangements, and visitation rights
- Child support and health insurance
- Additional costs and tax credits
- Money and property information
- Family home plans
- Division of assets
- Responsibility for debts
- Spousal maintenance
- Final details
- Information about pets
- A non-harassment clause, where spouses agree not to interfere with each other’s daily lives (optional)
- Any unique terms required for your situation that aren’t addressed in the template (optional)
What happens to my debt during a separation?
A marital separation does not dissolve your debt. You and your spouse must decide who will take responsibility for any outstanding debt you shared while together. Outstanding debt includes mortgages, loans, credit cards, or lines of credit.
Usually, you will not be responsible for any debt your spouse accumulated before marriage. You can avoid confusion by referring to your Prenuptial Agreement if you have one. This agreement will specify your separate debts, property, or assets prior to marriage.
What are considered assets?
Assets are items or things of monetary value. A spouse may have sole ownership over an asset, like a family heirloom, but may also have shared or joint ownership over other assets, such as the matrimonial home. Some assets that you or your spouse might own include:
- Bank accounts or trust funds
- Credit cards or lines of credit
- Cars or luxury vehicles
- Livestock or pets
- Land or property
- Physical money
- Electronics
- Furniture
- Jewellery
How do I discuss dividing assets with my spouse?
This conversation can be an emotional experience, but you can start by communicating honestly and respectfully with your spouse. Decide your goals and discuss what you want to achieve when dividing your assets.
Working on the Separation Agreement together can help keep you on track, ask questions, and clarify which assets matter most to you and your spouse.
How do we divide our assets?
Some couples may leave the relationship with assets or property held solely in their name. Others may want to calculate each item’s value and then divide things equally between each other. Here are three suggestions to help you get started:
- List all of your assets, both jointly and individually.
- Appraise the value of your assets. You should seek an expert opinion for larger assets such as real estate or anything else that may be difficult to value.
- Decide who gets what. Go through your list of assets, evaluate each person’s ownership claim, and then decide who should keep what. Consider exchanging one larger item for several smaller items to ensure an equal split.
Are Separation Agreements legally binding?
In most cases, Separation Agreements are legally binding and recognized by the courts. However, there are situations where the agreement will be invalid or void in the court’s eyes, including when:
- The terms of the agreement are not in your children's best interests
- One spouse has not fully disclosed certain assets or liabilities
- The terms of the separation are biased and unfair (i.e., it takes advantage of a spouse that is in a vulnerable emotional or financial state, or the agreement was signed under duress)
The courts may choose to invalidate the agreement using these terms to safeguard the interests of both parties. Some of the terms in the contract may even go against certain jurisdictional or federal laws. Voiding the Separation Agreement prevents someone from trying to enforce a noncompliant agreement.
Our legal team works hard to ensure LawDepot’s Separation Agreement template meets legal standards in each Canadian jurisdiction. However, it’s up to you to complete the form with your information. To ensure the validity of your agreement, it’s best practice to get a lawyer to review it upon completion.
Do both parties have to sign the Separation Agreement?
Both parties must sign the document for a Separation Agreement to become official. If your spouse refuses to sign the agreement, you can contact a lawyer or arbitrator to help settle the disagreement.
What is an arbitrator?
An arbitrator is a specially-trained individual who plays a judge-like role in resolving conflicts. Family arbitrators meet with separating couples to help them to resolve their issues without going to court. Many family arbitrators are lawyers but can also be psychologists or social workers with special family law training.
Arbitration is a faster, more private alternative to litigation, which involves taking lawsuits and disputes to court. You may also hire a lawyer though to represent you during the arbitration.
If you and your spouse cannot come to an agreement, then the arbitrator will decide for you. This is called a “family arbitration award.”
How do I avoid going through lawyers or arbitrators during a separation?
The less time you spend arguing with your ex, the less money you’ll waste on legal services. Avoid the hassle of dealing with lawyers or arbitrators by using LawDepot’s helpful template to guide your conversations. Then, craft a Separation Agreement with agreeable terms and conditions that you can present to your lawyer for a quick review.
Who can witness a Separation Agreement?
The legal requirements for witnesses for a Separation Agreement in Canada can vary by province and territory. All witnesses must be legal adults with capacity. However, each province or territory may have additional requirements.
For example, Alberta requires that all Separation Agreements include a certificate of independent legal advice. This is often recommended. Other provinces, such as British Columbia and Saskatchewan, require Separation Agreements to be notarized.
Can I revoke or change a Separation Agreement?
A Separation Agreement can be revoked so that it is no longer in effect. If the parties choose to do so, they should create a written document stating that they both agree to revoke the Separation Agreement.
A Separation Agreement can also be modified or changed. These changes must also be documented in writing. Parties can also challenge the agreement if they were under duress when they signed or if they discover information that the other party had been hiding during the document’s creation.
This often comes in the form of financial information that the other party did not disclose.
Once the couple is divorced, they would have to go to court to change the divorce order.
What happens if my spouse and I reconcile?
Our template allows you to add new clauses, such as one that addresses reconciliation. For example, a reconciliation clause could state that you must follow the terms of the original agreement for at least 90 days after you reconcile as a couple.